### No. 81-478 INTHE SUPREMECOURTOF THE STATEOF 

### MONTANA 1982

INTHEMATTER OF M.F., J.F., 

### and 

### R.W., YOUTH INNEED OF CARE.

Appeal from: District Court of the Thirteenth JudicialDistrict, Inand for the County of Yellowstone HonorableDianeBarz,Judgepresidinq. Counsel of Record: ForAppellant: GaryE. Wilcox,Billings,Montana ForRespondent: Ilarold F. 

### Hanser,CountyAttorney, Billings,Montana Olsen,Christensen & 

### Gannett,Billings, Montana DamonGannett,Billings, Montana

Submitted onbriefs: September 30, 

### 1982 Decided: November 

### 24, 1982 Filed: 

### wok

### &4

## 1982Mr. Justice John Conway Harrison delivered the Opinion of the Court.

On December 4, 1980, the Department of Social and Rehabilitation Services petitioned the District Court of the Thirteenth Judicial District, in and for the County of Yellowstone, for permanent custody of J.F., M.F., and R.W. and for termination of 

### all parental rights. After hearings on December 29, 1980, April LO, 1981, and April 15, 1981, the District Court granted the petition. Final judgment was entered August 4, 1981, and the naturalmother appeals. Petitioner is the natural mother of J.F., M.F., and R.W. Each of the children have a different natural father. J.F. 

### was bornApril 11, 1967, inBillings, Montana. M.F. 

### was born May 11, 1970, in Billings, Montana. R.W. was born December 9, 1974, in Farmington

### ,New Mexico. The Department of Social and Rehabilitation Services (SRS) first had contact with the natural mother in 1967. Especially during the time period from 1976 through 1981, SRS received

numerous complaints alleging abuse and neglect of the three children. Incidents of physical abuse 

### were sporadic and generally involved one of the mother's four husbands, or many boyfriends. InOctober, 1976, Ron Cooper, themother's thenhusband, threw R.W. against a wall. R.W., who 

### was then onlytwenty

### two months old, suffered 

### a broken leg 

### as a result of the incident. In November, 1976, M.F., then six years old, arrived at school with a swollen upper lip. M.F. told her teacher that her mother had struck her with a switch. In the fallof 1979, M.F. Isteacher observed bruises on M.F. 's leg and fingermarks on her arm. M.F. told her teacher that "the man" who was living with her mother at the time had kicked her and grabbed her 

### arm. InJanuary, 1980, M.F. missed one day of school. The next day M.F. told her school principal that Cyrus Watson had struckher and that she suffered cracked ribs as a result of the blow. Watson 

### was livingwith the mother atthe 

### time.A public health nurse, Lil Anderson, had several contacts with the children. In 1976, LilAnderson made her firstvisitto the familyhome. She found the home tobe quitedirty and noted that therewas 

### little

### or no food in the home. Ms. Anderson gave the mother instructions regarding nutrition, cleanliness, and appropriate dress for the children. When Ms. Anderson worked with the family on a regular basis, the house conditions would improve. When she didn't see the family for a period of about

one month she noticed the children's care would deteriorate. Several complaints during the five-year period concerned the children's general health and well-being. In June, 1978, a social worker found J.F. standing on Rimrock Road at11:30 p.m. Hehad been reported standing therefor threeand one-half hours. J.F. stated that he had left his mother's home because his mother's thenhusband had upsethim. In 1979, M.F. came into contact with Kathy Rumph, a school teacher atNewrnan Elementary School. AtNewman, M.F. was placed in a program called the resource 

### room. To qualify for placement in the resource room a student must be atleast one year behind in normal grade level performance. Ms. Rumph testified M.F. showed signsof severe emotional disturbance. M.F. was defensive and remained isolated from the other children. She was unable to play with other children and at times would talk "baby talk." While at Newrnan, M.F. Is appearance 

### was generally unkept. Her clothes 

### were generallydirty and ill-fitting

# . On several occasions she came to school with inappropriatedress fortheweather conditions. M.F. had a physical problem causing her to wet the bed atnight and would 

### sometimes come to school afterhaving 

### wet the bed and had not bathed orshowered inthe morning. M.F. told Ms. Rumph that she was occasionally left alone for entire weekends without food 

### to eat. Ms. Rumph and M.F.'s 

### classroom teacher arranged tofeed M.F. breakfast everydaywhen she arrived atschool. AfterM.F. was fed a good breakfasther academic performance would improve markedly.In December 1979, the family moved to an area just outside of Billings known as Lockwood. Sherry Lithander

### , the principal of Lockwood School, had considerable contact with M.F. and J.F. Ms. Lithander testified M.F. 

### was placed ina program similar to the program 

### atNewman School. Special arrangements 

### were made to feedM.F. everymorning. Ms. Lithander testifiedM.F. oftencame toschool with dirtyand improper clothing. M.F. had problems in the 

### classroom and tended to fantasize. Again, M.F. 

### was placed in

a special learning program to compensate for her academic deficiencies. In April 1979, M.F. 

### was placed in foster 

### care. The school personnel recognized a substantial improvement inM.F. Isphysical and emotional well-being. M.F. was well-dressed and well-fed and began to feel better about herself. She became better accepted by her 

### classmates. InMay 1979, M.F. was returned to hermother and her improvement subsided. Susan Betz also had contact with M.F. at Lockwood School beginning in December 1979. Ms. Betz conducted numerous tests with M.F. The test results showed M.F. exhibited 

### some learning disability. Ms. Betz found M.F. 

### to be two 

### to two and one-half years behind her academic age level. M.F. showed a certain evasivenesswhich attributed to herperformance at schooland her lackof friends. In August, 1980, M.F. and R.W. 

### were again placed in foster

care. Both Ms. Lithander and Ms. Betz noticed considerable improvement inM.F. 

### 's behavior and appearance during the 1980-81 schoolyear. Ms. Lithander alsohad contactwith R.W. during the 1980-81 school year when R.W. wasenrolled inkindergarten. R.W. showed signs of 

### slow development and suffered from environmental and cultural deprivation which was attributed to her home environmentduring herpre-school years. Collette Melia, a neighbor of the family at Lockwood, testified about the children's home conditions. She testified that on several occasions she fed R.W. because the child wouldask her for food. On one occasionMrs. Melia observed R.W. outside the family's 

### trailer at approximately 8:15 a.m. trying 

### to getin. Although themorning temperaturewas very cold, R.W. was wearing only a light jacket. R.W. was crying but no one would open the door forR.W. to enterthe house. On one occasion in August 1979, the mother left the three children sJ-eeping inthe trailer. A 

### roast which was leftcooking in the oven caught fire and neighbors had to remove the three children. On August 8, 1980, M.F. and R.W. 

### were placed in foster care with Kaye Nelson. Mrs. Nelson testified about the girls1conditionwhen they firstarrived atherhouse. Mrs. Nelson stated thegirlsseemed desperate forlove and affectionand would cling

on anyone who would 

### allow it. When the girls arrived they 

### were both veryhungry and R.W. 

### was very skinny. The two lacked table

manners and would hide food in their rooms. M.F. had a very 

### low self-esteem. Although R.W. could talk, M.F. usually had to translate for R.W. when she spoke. Atthe 

### time of the hearing bothgirlsshowed excellent overall improvement. R.W. 

### was better able 

### to communicate and had a normal appetite. M.F. Isfeelings about school and herself had undergone a drastic change. The children had made friends and 

### were getting along quite well at school. While the girls

### were in foster 

### care they had sporadic home visitswith theirmother. The visitsdid not show signs of any improving relationshipbetween the mother and the two girls. During 

### some home visits the mother would leave the girls with J.F. to babysitwhen shehad otherplans. Judy Robinson, a social worker, testified about her contact with the children. AfterJanuary 1979, tothe timeof the foster

care placement, the Welfare Department received twenty-one complaints about the children's care from eight to ten different people. Dr. Robert E. Tompkins performed a psychological evaluation of the mother inFebruary 1981. The results of the 

### tests indi-cated the mother possessed personality 

### traits that would interfere with her ability 

### to provide a stable environment for the children. Dr. Tompkins found the mother had limited intellect and demonstrated poor judgment. Dr. Tompkins testified the mother was likelyto respond 

### to her needs firstand those of the children later. Dr. Tompkins testified given the mother's personality and problems, counseling would not be beneficial

# . Dr. Tompkins further testified it was unlikely the mother would ever change 

### to provide a stable environment for the children. On April 30, 1980, SRS filed a petition for temporary investigative authority relative to J.F., M.F. and R.W. in the District Court of theThirteenthJudicial District. On December 4, 1980, SRS filedapetition forpermanent custodyand authority 

### to assent 

### to adoption of the children. Hearings 

### were held on December 29, 1980, April 10, 1981, and April 15, 1981. The District Courtentered findingsof fact and conclusions of law on July 2, 1981. Judgment was entered on August 4, 1981. The District Court declared J.F, M.F. and R.W. to be youths in need of care and ordered the parental rights of the natural mother terminated. The District Court furtherordered permanent custody of the youths be awarded to SRS with consent to adoption. J.F.

was ordered tobe placed in the care of the natural mother. The mother appeals. The issues raised on appeal areasfollows: 1. Whether the District Court erred in failing to appoint counsel for themother 

### at the time of the application for temporary investigativeauthority. 2. Whether the attaching of a "report to the court" to the petition for permanent custody and authority to assent 

### to adoptionconstitutesreversibleerror. The mother argues the District Court should have appointed counsel to represent her at the 

### time SRS filed the temporary investigative authority (TIA). She claims the period from the issuance of the TIA to the filing of the petition for permanentcustody is used largely to compile evidence to support termination of the parent's rights. Thus, the mother contends the assistance of counsel 

### is essential to insure due process. InLassiter v. Department of Social Services (1981),452 U.S. 18, 68 L.Ed.2d 640, 101 S.Ct. 2153, the United States Supreme Court granted certiorari to consider a natural mother's claim that appointment of counsel is essential at the termination stage. The United StatesSupremeCourt stated: "Insum, theCourt's precedents speakwith one voice about what 

### 'fundamental fairness' has meant when the Court has considered the right to appointed counsel, and 

### we thus draw from them thepresumption thatan indigentlitigant hasa right to appointed counsel onlywhen, if he 

### loses

## , he may be deprived of his physical liberty. It is against thispresumption that all the other elements in the due process decisionmust be measured. "The case of Mathews v. Eldridge, 424 U.S. 319, 335, propounds three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, thegovernment's interest, and the risk that the procedures used will lead to 

### erroneous decisions. Wemust balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose hispersonal freedom." 452 U.S. at26. In Lassiter, the United States Supreme Court held the trial -- -- court did not 

### err by failing to appoint counsel for a natural mother in a termination proceeding where the mother did not appear at the initial custody hearing and did not even speak to her retained lawyer after being notified of the termination hearing. The United States Supreme Court held, given the facts before them in thisparticular case, the threeEldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel. This Court agrees with the United States Supreme Court's holding inLassiter, supra, and has held that the 

### same rationale should be applied in determining whether appointment of counsel 

### is necessary at the TIA stage as well 

### as the termination stage.In, Matter of M.D.Y.R. (1978), 177 Mont. 521, 582 P.2d 758, a natural mother claimed the lack of appointed counsel at a temporary custody hearing deprived her of due process. This Court held: "It 

### is contended on behalf of the mother that in this 

### case, at the hearing for temporary legal custody, it should have been mandatory that the court appoint counsel to represent the mother. The statute, (sect ion 10-1310(12), R.C.M. 1947, now codified as section 41-3-401(12), MCA), however, is not couched inmandatory language, and statutorily at 

### least we must say that the matter of appointment of counsel, whether for temporary or permanent legal custodyr 

### is left to the discretionof the court." 582 P.2d at764. Section 41-3-401(12), MCA, states, 

### "[tlhe court may at any time on its own motion or the motion of any party appoint a guardian ad litem for the youth 

### or counsel for any indigent party.I' Thus, as we stated in - M.D.Y.R.

. -- the language is discretionaryand appointmentof counsel 

### is not mandated inevery

### case. AstheUnited StatesSupreme Courtheld inLassiter, supra, there is a presumption againstthe right 

### to appointed counsel and only if the three Eldridge -factors overcome thispresumption willdue process require appointment of counsel. The three factors: private interests,government's interestand riskof erroneousdecisions do not overcome the presumption in the present case. The private interests 

### are the parent's desires and rights to the custody of her natural born children and the children's right to live a bountiful lifefreeof abuse and neglect. The government has interests in the welfare of the children and the rights of the parents 

### as well 

### as an interest in an accurate and just decision. Lastly, 

### we must consider the risk that a parent will be erroneously stripped of their parental rights because they were not represented by counsel. The United States Supreme Court weighed the three factors in- Lassiter -- .--- stating: "If, in 

### a given 

### case, the parent's interests 

### were attheir strongest, the State's interests 

### were attheir weakest, and the risks of 

### error were at their peak, it could not be said that theEldridge factorsdid not overcome thepresumpflonagainst the right 

### to appointed coun

### sel, and that due process did not thereforerequire the appointmentof counsel." 452 U.S. at31. In the present 

### case, although the parent's interests 

### are strong, the State's interest is not weak nor 

### were the risks of



### error at a peak. The State has a great interest in a just and accuratedecisionforallparties concerned and the riskof 

### error 

### is unsubstantiated. The mother claims that theTIA stage to the termination stage 

### is simply for the compilation of evidence and that assistance of counsel is therefore essential. However, counsel 

### was appointed for the mother on December 8, 1980. The hearings on the petition for permanent custody 

### were held on December 29, 1980, April 10, 1981and April 15, 1981. We feel the appointment of counsel prior 

### to these hearings did 

### accommodate themother's right todue

### process. Wecannot compare this situation 

### to that of a criminal proceeding where a defendant requires effective counsel 

### to advise him of his constitutional rights at the pretrial stage. Here, there 

### was no investigation by the SRS which would be altered by the entrance of legal counsel. In addition, the mother did not 

### raise sufficiency of the evidence as an issue on appeal. If there

### was a specific evidentiary problem with the SRS investigation, it seems the mother would have raised it, although she did not. Thus, 

### we hold the mother was not deprived of her right to due process of law. The mother furtherargues the submissionof a 

### social worker's "report to the court" along with the petition for permanent custody 

### is reversible 

### error. The section governing abuse, neglect and dependency petitions neither requires nor prohibits attaching a socialworker's report along with the petition. See section 41-3-401, MCA. Thus, 

### we must look at the facts of each

case 

### to determine whether such a report will constitute reversibleerror. InMatter of Moyer (1977), 173Mont. 208, 567 P.2d 47, this Courtdidnot rule specificallyon whether a prehearing report in support of a petition for permanent custody 

### is error. However,



### wedid 

### state:"Itis true that a judge violates due process requirements if he bases his child custody order on statements in a welfare department report without requiring the authors of the report to testify 

### at a hearing and be subject to cross-examination [citations omitted]

# . In a civilcase, such 

### as the one atbar, which is tried before the court without 

### a jury, there is a presumption that the 

### trial judge has disregarded all inadmissible evidence in reaching hisdecision. OtSullivanv. Simpson, 123 Mont. 314, 212 P.2d 435; Healy v. First National Bank, 108 Mont. 180, 89 P.2d 555." 567 P.2d at49. The possibility forerrorwould be greatwhere a trial court relied on reports not supported by examination at 

### a custody hearing. However, here the report in question 

### was authored by Judy Robinson, a social worker, who did testify at the hearing. Her testimony at the hearing 

### was essentiallywhat 

### was contained in the report. The mother did have ample opportunity 

### to crossexamine Judy Robinson and point out any hearsay statements 

### or defects in the report 

### at the hearing. Asstated above, there 

### is

a presumption that the trial court has disregarded all inadmissible material inmaking its decision. Here, the mother has citednothing 

### to rebut thispresumption. The mother argues the report contains events which 

### are 

### too remote in 

### time to be of probative value. In Matter of K.V. and K.A. (1982), -.------ Mont

# . P.2d --

## ,39 St.Rep. 1582; thisCourt ruled on thisexact argument stating: "Appellant believes that it 

### was improper for the District Court to base its termination decision on events which occurred before KA 

### was adjudicated 

### to be a youth inneed of 

### care. Appellantwould require

### a showing by theState that the circumstances and conditions which predated the adjudication continued to exist at the 

### time of termination. While such a showing might be appropriate if SRS had only recently begun to work with the family, in a situation where the parent has been assisted and monitored by SRS over a period of years and the family environment has not yet stabilized and perhaps even deteriorated, to require 

### more would beg for experimentation at the expense of the child's best interest." 39 St.Rep. at1585. Here, SRS has had contact with the family since 1967. We cannot say that any of the evidence contained 

### in the report 

### was 

### too remote to be of probative value and thus inadmissible 

### atthecustody hearing. We feel compelled 

### to mention that although the mother has relied heavilyon Matter of Swan (1977)t 173Mont. 311, 567 P.2d 898, the facts of this case are quite different from -- Swan. In Swan, SRS filed several written reports with the petition for

.-.- permanent custody. The authorsof the 

### reports did not testify

### at the custody hearing. In fact, the entireproceeding waspeppered with hearsay evidence which was alsoallowed as testimony at the hearing. For that reason thisCourt reversed. However, in the present 

### case the author of the report did testify at the hearing and themother 

### was allowed to cross-examine. 

### We find no 

### error in the submission of the report when the petition was filed given these circumstances. We also find it necessary 

### to comment upon a discrepancy in the trial court's finalcustodyorder. The relevant sections of theorder state: "3. IT IS HEREBY ORDERED that the parental rightsof [C.W.], naturalmother of the abovenamed youths [M.F. J.F. and R.W.] 

## , are 

### terminated. "5. IT IS HEREBY ORDERED that the permanent care, custody and control of the above-named youths be awarded to the Department of Social and Rehabilitation Services of the State of Montana, and a representative of the Department of Social and Rehabilitation Services be authorized 

### to appear inany Court where adoption proceedings are pending concerning [M.F.] and [R.W.] and assent 

### to adoption. "6. IT IS HEREBY ORDERED that [J.F.] be placed with [C.W.

### 1

# ."

The effectof thisorder as to J.F. is 

### to terminate the parental rights of the natural mother, place legal custody in the SRSyet give physical custody to the natural mother. While after a findingof abuse and neglect atadispositional hearing the trial court may 

### allow the parents to retain physical custody of the 

## b) children pursuant 

### to section 41-3-406h(a), MCA.

## , once parental rights 

### are terminated physical custodyby the natural parents 

### is

no longeran alternative. Section41-3-611, MCA, states: "Effect of decree (1)An order for the 

### term-



### -- --inationof the parent-child legal relationship divests the child and theparents of alllegal rights, powers

## , immunities, duties, and obligationswith respect to each otheras provided in title 40, chapter 6, part 2, except the rightof the inheritfrom theparent." Here, it appears the 

### lower court only intended 

### to terminate the parental rights of M.F. and R.W. and 

### we remand 

### to the 

### lower court foran appropriate order. Judgment is affirmed in part and remanded 

### to enter a proper finalcustodyorder.

Weconcur: